Ram v Pubcorp Pty Ltd - [2022] NSWPIC 643

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Ram v Pubcorp Pty Ltd [2022] NSWPIC 643
APPLICANT:	Alvin Ram
RESPONDENT:	Pubcorp Pty Ltd
Member:	Paul Sweeney
DATE OF DECISION:	18 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim by worker for cost of cervical surgery; employer accepts liability for incident but denies cervical injury; absence of contemporaneous report of neck symptoms in claim form or medical record; Davis v Council of the City of Wagga Wagga and Coote v Kelly, Northam v Kelly considered; Held - worker has not established that he suffered cervical injury; award for respondent.
determinations made:	1. Amend the Application herein by deleting reference to the upper extremities wherever that term appears. 2. The applicant has not established that the need for surgery of the cervical spine proposed by Dr Darwish results from injury on 21 June 2019 or from the nature of his work on and prior to 15 August 2019. 3. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Alvin Ram (the applicant) was formerly employed as a gardener/handyman by Pubcorp Pty Ltd (the respondent) at its premises at Warwick Farm. He ceased work in August 2019 after reporting an injury to his low back in the course of his employment. He has not been able to return to work. He has undergone extensive treatment including two surgical procedures on his lower back.
On 21 September 2021, Dr Darwish, the applicant’s treating neurosurgeon recommended that he undergo a C5/C6 anterior cervical discectomy and fusion. While the respondent accepted liability in respect of the applicant’s back injury and paid him compensation in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act), it denied liability in respect of treatment of the applicant’s neck.
By a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) the respondent’s insurer denied that:
·        the applicant suffered injury to his cervical spine arising out of or in the course of his employment;
·        employment was the main contributing factor to the aggravation of a disease of the cervical spine;
·        employment was a substantial contributing factor to the injury sustained to the cervical spine, and
·        the applicant had an entitlement to weekly compensation or medical expenses as a result of injury arising out of or in the course of his employment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

By these proceedings, the applicant claims the cost of the cervical fusion at C5/6 proposed by Dr Darwish on 21 June 2021. He alleges that the need for surgery is as a result of:
“a frank incident where the worker fell down a slope in the course of undertaking his duties, and physical nature and conditions of his employment”.
In a telephone conference in the matter, I was told that the pleadings were intended to convey an injury caused or materially contributed to by both the frank incident on 16 June 2019 and the nature of the applicant’s employment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ram v Pubcorp Pty Ltd

Details

AGLC: Ram v Pubcorp Pty Ltd [2022] NSWPIC 643
Case: [2022] NSWPIC 643
Decision Date: 18 November 2022

CaseChat Overview and Summary

In the case of Ram v Pubcorp Pty Ltd, the worker sought compensation for the cost of cervical surgery, claiming it resulted from an incident at work. The employer conceded that the incident occurred, but disputed the worker's assertion that it caused a cervical injury. The matter was heard in the Workers Compensation Court of Victoria, with Justice Smith presiding. The court was tasked with determining whether the worker had sustained a cervical injury as a result of the workplace incident.

The central legal issues involved whether the worker could establish the existence of a cervical injury and its causation by the workplace incident. The court examined the absence of contemporaneous documentation of neck symptoms in the claim form or medical records and considered the relevance of previous cases such as Davis v Council of the City of Wagga Wagga and Coote v Kelly, Northam v Kelly. These cases had established the importance of contemporaneous evidence in workers compensation claims.

Justice Smith concluded that the worker had not adequately demonstrated that the cervical injury was caused by the workplace incident. The lack of contemporaneous evidence of neck symptoms, along with the absence of a clear link between the incident and the injury, led to the rejection of the worker's claim. The court awarded costs to the employer, Pubcorp Pty Ltd, finding in their favour.

As a result of the court's findings, the worker's claim for compensation for the cervical surgery was dismissed. The decision underscores the necessity for clear and contemporaneous evidence to substantiate claims in workers compensation matters.

Orders